France: Biometric ID database found unconstitutional

By EDRi · March 28, 2012

This article is also available in:
Deutsch: [Frankreich: Biometrie-Datenbank verfassungswidrig |]

The French Constitutional Council found the law proposing the introduction
of a new biometric ID for French citizens as unconstitutional. The law was
referred to the Constitutional Council on 7 March 2012, by more than 200
members of the French Parliament, a day after the French National Assembly
passed the 10-article law under the pretext of combating “identity fraud”.

According to the bill, more than 45 million individuals in France would have
their fingerprints and digitized faces stored in what would be the largest
biometric database in the country. The biometric ID card was to include a
compulsory chip containing personal information, such as fingerprints, a
photograph, home address, height, and eye colour. A second, optional chip
was to be implemented for online authentication and electronic signatures,
to be used for e-government services and e-commerce.

The opposing parliamentarians challenged the compatibility of the bill with
the citizens’ fundamental rights including the right to privacy and the
presumption of innocence. In passing the bill, the National Assembly ignored
CNIL’s (French Data Protection Authority) report of October
2011 that was criticizing the creation of the centralized biometric
database. It also entirely ignored the general opposition at the European
level. In 2011, EDRi and 80 other civil liberties organizations asked the
Council of Europe to study whether biometrics policies respect the
fundamental rights of every European.

Moreover, previous experiences in France with biometric passports (highly
criticised as well) have proven entirely unreliable with about 10% of the
issued passports having been fraudulently obtained. The bill does not take
into consideration either the position of the European Court of Human Rights
which in 2008 condemned UK for breaching the right to privacy after the
creation of a file including data on all people involved in a crime,
irrespective of their position (victim, witness, suspect or guilty).

On 22 March, the Constitutional Council found unconstitutional four articles
of this law, as well as part of other two articles. The council reminded
that “the collection, registration, preservation, consultation and
communication of personal data have to be justified by a general interest
reason and carried put properly and proportionally”.

While the Council found no problem related to the general interest, it
clearly raised the issue of proportionality. “Regarding the nature of the
recorded data, the range of the treatment, the technical characteristics and
conditions of the consultation, the provisions of article 5 touch the
right to privacy in a way that cannot be considered as proportional to the
meant purpose”.

The Council also had objections against the creation of the huge biometric
database considering the fact that the National Assembly had authorized the
use of the database by the police for extended purposes from the
identification of an accident victim to finding the authors of law
infringements or crimes.

The confusion in the bill text between an identity document and an
electronic payment means was also sanctioned by the Council. The idea was
that the ID could contain data allowing the owner to apply an electronic
signature in view of electronic transactions. The Council drew the attention
on the fact that the law did not specify the nature of the data and did not
provide any guarantee for the integrity and confidentiality of these data
and considered that the legislator has exceeded its competence in this
matter. In other words, that the government did not really know what they
were talking about.

The new electronic identity card judged as unconstitutional (only in French,

France: Constitutional Council censors the database created to fight the
identity theft (only in French, 23.03.2012)

Decision n° 2012-652 DC on the Law regarding the identity protection (only
in French, 22.03.2012)

“A Time Bomb For Civil Liberties”: France Adopts a New Biometric ID Card